Vir­ginia tribe faces river of red tape if it wants casino

Newly rec­og­nized by the fed­eral gov­ern­ment, Vir­ginia’s Pa­munkey In­di­ans are con­tem­plat­ing a fu­ture that could in­clude launch­ing a casino. In a state that has long fought any casino de­vel­op­ment, the tiny tribe’s de­ci­sion could have an enor­mous im­pact.

But get­ting to gam­bling isn’t as sim­ple as flip­ping a switch. And for the 208-mem­ber Pa­munkey, the first Vir­ginia tribe to re­ceive of­fi­cial sanc­tion from the U.S. Bureau of In­dian Af­fairs, it might be es­pe­cially chal­leng­ing. Gam­bling on their reser­va­tion 20 miles east of Rich­mond may even re­quire an act of Congress— never a sure bet — for the tribe to launch even a sim­ple bingo par­lor.

Tribal lead­ers say they have not be­gun se­ri­ous dis­cus­sions about whether a casino makes sense for the Pa­munkey, who claim Poca--

hon­tas as an an­ces­tor and sought fed­eral recog­ni­tion for decades. But they also aren’t rul­ing it out.

“We haven’t put any­thing on or off the ta­ble,” said Bob Gray, the tribe’s act­ing chief. “Right now, that’s not our fo­cus. Not to say we won’t look at it. Now that we have fed­eral recog­ni­tion, some of those com­pa­nies that do that sort of thing may come knock­ing on our door.”

Vir­ginia is one of just 10 states that do not have casi­nos — com­mer­cial or tribal— and it has long op­posed casino de­vel­op­ment. So there is in­tense in­ter­est in what the Pa­munkey will do.

“That would be a game-changer if they went there,” said Char­lie Davis, a long­time Rich­mond lob­by­ist who has rep­re­sented casino in­ter­ests. “It would be huge. It would be sort of like theme­te­orite that slammed into Earth and cre­ated the es­tu­ary that is the Ch­e­sa­peake Bay.”

The pos­si­bil­ity has diehard gam­bling op­po­nents fret­ting — and feel­ing a lit­tle help­less.

“I’d be pretty dis­ap­pointed, but there prob­a­bly wouldn’t be much I could do about it,” said Vir­ginia’s pow­er­ful House speaker, Wil­liam J. How­ell (R-Stafford), who has stren­u­ously op­posed ef­forts to open casi­nos in the Old Do­min­ion. “That’s my un­der­stand­ing of the law.”

A le­gal path ex­ists for the Pa­munkey to make Vir­ginia the 29th state with Na­tive Amer­i­can gam­ing, but it could be a long jour­ney.

First, the tribe would need to have its land taken into trust by the fed­eral gov­ern­ment, which would place it un­der fed­eral rather than state laws. That sounds sim­ple enough, but it’s a process loaded with le­gal com­plex­i­ties. (An lawyer fa­mil­iar with all the lay­ers de­scribed In­dian gam­ing as a “lawyer’s re­tire­ment plan.”)

The Pa­munkey would have to con­tend with the In­dian Gam­ing Reg­u­la­tory Act of 1988, which pro­hibits the fed­eral gov­ern­ment from tak­ing land into trust on be­half of In­dian tribes that re­ceived fed­eral recog­ni­tion af­ter 1998 un­less they qual­ify for one of a few lim­ited ex­cep­tions. And in 2009, the Supreme Court ruled in

Carcieri v. Salazar that In­dian lands can­not be taken into trust by the fed­eral gov­ern­ment if the tribe was not un­der fed­eral ju­ris­dic­tion in 1934, when the In­dian Re­or­ga­ni­za­tion Act was en­acted.

The Pa­munkey would likely not meet that cri­te­ria, though there are loop­holes that lawyers could ex­plore. There is also a move­ment, in re­sponse to the rul­ing, for con­gres­sional ac­tion to give the Bureau of In­dian Af­fairs per­mis­sion to take lands into trust for In­dian tribes that were not un­der fed­eral au­thor­ity in 1934.

“Congress, ab­so­lutely, has the power to take this land into trust,” said Kathryn R.L. Rand, co-di­rec­tor of the In­sti­tute for the Study of Tribal Gam­ing Law and Pol­icy at the Univer­sity of North Dakota. “So it’s not im­pos­si­ble. But it does make it more com­pli­cated.”

If the land re­quire­ments were re­solved, the Pa­munkey’s gam­bling op­er­a­tion would need to be sanc­tioned by the In­dian gam­ing com­mis­sion. The tribe would need to sub­mit a gam­ing or­di­nance that sat­is­fies the fed­eral re­quire­ments — even for some­thing as ba­sic as bingo. If the tribe wanted slots and ta­ble games, it would have to en­ter into a com­pact — or agree­ment — with the com­mon­wealth.

The en­tire process, if all went smoothly, would take the tribe three to five years, ac­cord­ing to one lawyer fa­mil­iar with In­dian gam­ing. More likely, she said, it could be twice that.

Tribes have been will­ing to en­dure the lengthy process be­cause the end re­sult can be so lu­cra­tive. The Pa­munkey would have a mo­nop­oly on casino gam­bling in Vir­ginia, a po­ten­tially huge mar­ket.

The tribe’s ac­tions are be­ing closely mon­i­tored in neigh­bor­ing Mary­land, where MGM Re­sorts In­ter­na­tional is open­ing a $1.2 bil­lion casino at Na­tional Har­bor in Prince Ge­orge’s County next year.

MGM-Re­sorts had op­posed the Pa­munkey’s ef­fort to get fed­eral recog­ni­tion pre­cisely be­cause it wor­ried that the tribe might in­tro­duce com­pe­ti­tion with a casino and drain away Vir­ginia cus­tomers.

In the short term, Mary­land casi­nos and gam­bling op­po­nents have noth­ing to worry about. But if the Pa­munkey de­cide to pur­sue a casino, it will change the land­scape of gam­bling in the re­gion.

TI­MOTHY C. WRIGHT FOR THE WASHINGTON POST

A sign gives di­rec­tions to the Pa­munkey reser­va­tion 20 miles east of Rich­mond. The tribe is the first in Vir­ginia to win fed­eral recog­ni­tion.